Thread by @LiveLawIndia

A Constitution Bench of the #SupremeCourt led by CJI BR Gavai to hear today the All India Judges Association case.

The bench will decide whether to earmark a quota of District Judge posts for those who entered judiciary as Civil Judges(Junior Division) to avoid career stagnation.

Sr Adv Siddharth Bhatnagar appears as the Amicus Curiae in the case

Bhatnagar refers to the reference order :
"It cannot be disputed that the judges who were initially appointed as CJ(Civil Judges) gain rich experience since they have been serving in the judiciary for a number of decades. Furthermore, every judicial officer, be it one who was initially recruited as CJ or one who was directly recruited as a District Judge, has an aspiration to reach at least up to the position of a High Court Judge.

We are, therefore, of the view that a proper balance has to be struck between the competing claims. However, this issue would involve consideration of some of the judgments and orders passed by Benches comprising of three learned judges of this Court. Therefore, in order to put the entire controversy at rest and provide a meaningful and long-lasting solution, we are of the considered view that it will be appropriate if the issue is considered by a by a Constitution Bench consisting of five learned Judges of this Court."

Bhatnagar reads from his submissions. He mentions that the disparity in cardre was noticed in the 1 st National Judicial Pay Commission

Bhatnagar mentions that, as per the feedback received from all the HCs, on average, the promotees will always be older than the direct recruits for the post of district judge

Bhatnager states that the reason is that the Civil Judges Sr Division, get promotion only at the advanced age while bar members are directly recruited at a younger age

Bhatnagar refers to a chart mentioned in J Shetty Commission- Average age of promotee in Andhra Pradesh is 48 , directly recruited- 39 years; Assam- 51 : 38; Bihar 54: 41 - so in virtually every state, there is that age disparity

J Chandran : in Kerala you have said that 49 years is for the direct entry. In Kerala, now there are atleast 5 HC judges who are direct entry people who are of this age

Bhatnagar : I may not be correct , I will recheck

J Chandran : in Bihar it takes 17 years to become a district judge, for promotees

Bhatnagar mentions that after the 3 years practice rule decision, for the promotees category, the average age should now be considered with an addition of 3 years more

(Referring to the recent decision on allowing judicial officers with prior 7 years experience to be eligible for District Judge post)

J SuryaKant: if you give so much incentive to the seniority of the direct recruits, our junior cadre will start only working for competing in the (district judge post)

Bhatnagar : and they will not be interested in deciding cases, they will only study for the exam

J Kant: we will have crisis in the junior division level

Bhatnagar: exactly, you will spend 7 years preparing for your district judge etc, then you are not bothered about your ACRs

Bhatnagar : in that matter, hardly anyone was taking LC, now they will take because of the incentive and you are assuming that every civil judge after 7 years will clear the examination. We are dealing with 50% of the cadre here, for them seniority and promotion is a very important aspect

Bhatnagar : so even after taking the oppurtunity, 50% of the cadre will still remain regular promotees in the cadre

Bhatnagar: so mylords may think about that too

Bhatnagar reads his suggestions: in the 25% direct recruitment, you have 50% quota, for 75% promotee cadre, you also have 50% quota - but here you have to see one nuance-

Bhatnagar : District Judge cadre has 50% judges from the entry level; 35% at selection grade and 15% at supertime scale , so if 1:1 quota is to be applied and we apply it to both selection grade and supertime scale, then no entry level, direct recruit judge left

Bhatnagar : because 17.5% + 7.5% will go into the next post, so my suggestion is to have that at the supertime scale

J Kant : what will be incentive left for an officer, who says that why should I work hard, compete and qualify an exam when eventually, in terms of seniority or in terms of the benefit of higher payscale, I am going to lose

Bhatnagar : suppose there are two civil judges, one is junior to the other (sr Division), the junior one passes the LC examination, he comes directly into the cadre of district judges, he becomes senior to the regular promotee when he comes in, so the seniority will be higher in any case

Bhatnagar : at the entry level we are not seeking a quota, the LC will anyway be senior , only at supertime scale will the promotees get

Bhatnagar : my second suggestion is - that most HCs consider 3 times the post, so for 30 considerations, 15 should be from the promotees and 15 from direct recruits , this is the zone of consideration argument so atleast somebody comes in the zone consideration

J Baghchi : your second suggestion will infact create a cadre within a cadre. If there are 10 candidates eligible for supertime or selection grade, it would be 5 from promotees and 5 direct recruits. So what will happen is, at the district judge, entry level, its a common cadre, if second suggestion is adopted, then we are creating a cadre within a cadre

J Baghchi: we can definately consider the suggestion of quota but if we take the cadre as groups it may be not uniform but a stratified cadre

Bhatnagar : Chhatisgarh, Gujarat, Himachal, Jharkhand, MP, Mizoram, Nagaland, Tamil Nadu, Sikkim, Uttrakhand, West Bengal, Delhi , J&K - they are saying in their states, there are suffient number , if not more, promotees

J Chandran : the data that you have relied upon, all of them were recruited as junior division judge in the age of 27 - 28 years , because at that time there was a prescription of practise, now for the last one decade, the things have drastically changed, they get into service at 23, we cannot rely on this data alone

J Chandran : with the LDCE category - Limited Departmental Competitive Exam category also, at 35 they get a chance to go to district judge level, the entire data would change

Intervenors make their submissions

Counsel for promotees from the State of Bihar makes brief submissions

Counsel: in certain states like Bihar and UP the roaster application on seniority has created quite a problem

Counsel : the only way to adjust the roaster is that we have to run the roaster year wise

Counsel : what I suggest is that the roaster operation has to be yearly, it cannot extend beyond the calender, whatever recruitment takes place as per the categories it has to be fitted within the roaster

CJI: so you cannot carry forward

Counsel : yes cannot carry forward, because the moment you carry forward this discrepancy will start to happen

Sr Adv Vibha Makhija appears for the candidates in the LCDE category

Makhija : we are the grade getting sandwich between the two stones, the HC is treating us as part of the promotee group and we are not getting the benefit that we were supposed to get

Makhija explains that there are 3 ways for the filling the post of District Judge, promotees, direct recruits and and LDCEs. Since 2002, the LDCE as a separate category has not been obliterated

Makhija : my learned friend, amicus has suggested four alternatives. In my respectful submission, your Lordships, each of the alternative is a, I'm sorry to say, a half measure, it is not a complete solution to the problem that we are facing. Many High Courts have rules, and I'll just point out to your Lordships, where the rules are on the basis of cadre, rules are on basis of roster. However, they have not been applied consistently by the High Courts. It fell from Justice Baghchi, that the problem that is arising is not the methodology, but it is the application of the methodology, and I will show that also your Lordships

Makhija : how is the quota to be worked out? Next aspect, your Lordships, is whether it has to be worked out on the basis of post or vacancy. This is also a well- conceptualized legal concept, your Lordships.

Makhija : three categories at the same level. Now, within the promotees itself, what will be the seniority? What will be the basis of seniority? Now, between these three categories, your Lordships, merit is the basic criteria, it is the primary criteria, and that is why it is being incentivized for the LCE, category.

Makhija : So, when the merit is incentivised, your Lordships, how is it incentivised or on what ground, your Lordships? It can be incentivised only by me climbing the ladder higher, faster. But if I take the exam, I do very well in the exam or do badly also, but I clear the exam, your Lordships.

Makhija : And I remain at the same position in the promotee list. Then there is no incentive for me to better my skills, your Lordships. And from a practical, uh, state-wise aspect, I can show to your Lordships, that promotees who took LCE exam, they are actually coming lower in, seniority than higher in seniority

Bench will resume after lunch

Bench resumes

Makhija refers to case laws from her submissions

Sr Adv V Giri appears for the Kerala HC

Giri: this is the data of the last 5 years placed before you. Principle District Judge is not a post covered by the rules but it is required. And therefore mylords, when we chose that we normally go by the position of seniority, merit and suitability are equal, therefore we go by seniority

Giri: but in that it is possible that mylords may lay down some guidelines, where mylords the HC could still retain discretion in the question of giving some weightage to those persons who have come through remote channel when it comes to the question of assignment or responsibilities as a principle district judge

Giri: another submission is, none of the judgments of this court would say that a valid criterion cannot be adopted for the purpose of assignment or an advantage to a person within a cadre

Giri : None of the judgments of this order would say that that would amount to a creation of a cadre within the cadre. No, that is not what it is meant for. It is not for the purpose of, my Lord, creating a sub- cadre. It is only for the purpose of, taking note of a valid criteria for the purpose of assigning seniority within the high judicial service. Because anyway, it is not on seniority that the creation of a lot of the high court is determined on.

Giri : Therefore, it is only for the purpose of determining whether higher responsibility can be assigned to those persons who are serving the higher judicial service namely principal district that essentially offers selection grade offers super time scale assets it is only for that purpose that we have ventured to make the submissions before you, we obviously cannot say that this should be giving an advantage either to the promotees or to the direct recruits or to the LDCEs

Other intervenors make their brief submissions